The Supreme Court judgment quashing all criminal cases of obscenity against Khushboo is a welcome blow against hypocritical morality masquerading as virtue. But it isn’t enough. We need to debate the merits of criminalising sexually explicit material as obscene, in sharp contrast to publications, films and material that promote sexism and violence, writes Rakesh Shukla

The judgment delivered by the Supreme Court in the Khushboo case in April 2010 has struck a welcome blow against hypocritical morality masquerading as virtue and against use of the criminal justice system to harass individuals with views at variance with a section of conservative opinion. In the courts, until a judgment is delivered, it is always a close call as to which way the penny will drop. A lot depends on the disposition and inclination of the judges who constitute the bench which hears the case.

The Madras High Court’s rejection of a plea to quash the criminal cases against Khushboo is a case in point. The high court, while directing consolidation of the criminal cases filed in multiple locations, made strong observations condemning pre-marital sex and live-in relationships.

A bit of background is relevant here.

The magazine India Today conducted a survey on the sexual habits of people residing in big cities, including the growing incidence of pre-marital sex. There were questions regarding marrying a person who has had relationships with others and about virginity at the time of marriage. The September 2005 issue of the magazine carried the findings of the survey and views expressed by individuals from various sections of society. The well-known actress Khushboo noted the rising incidence of pre-marital sex, especially in the context of live-in relationships, and called for social acceptance of the same. She also expressed the view that “society should come out of the thinking that at the time of marriage the girl should be with virginity”. She warned girls to take adequate precautions against unwanted pregnancies and the transmission of venereal diseases. A news item quoting Khushboo’s statement in India Today appeared subsequently in a daily.

The expression of these moderate views led to the filing of 23 criminal cases against the actress for offences of obscenity, criminal defamation, outraging the modesty of a woman, promoting enmity among groups under the Indian Penal Code (IPC) and under provisions of the Indecent Representation of People (Prohibition) Act.

The strange and absurd logic that constituted the basis for these complaints would be hilarious were it not for the serious consequences of criminal cases being entertained by the courts. The treasurer of a district unit of a political party filed a case alleging that the Khushboo interview suggested that women of her profile engaged in pre-marital sex, and that this had brought shame and caused mental harassment to a large number of women. Yet another married woman alleged mental agony as the interview suggested that all women in Tamil Nadu had lost their virginity before marriage. A male advocate alleged that Khushboo’s views questioning the need for women to maintain their chastity or virginity could persuade people to become involved in unnatural crimes, and amounted to an offence.

After the Madras High Court, in April 2008, refused to quash the criminal cases, Khushboo filed an appeal and the matter reached the Supreme Court which delivered a judgment in April 2010, reported as S Khushboo versus Kanniammal and another, 2010 (4) SCALE 467.

The main submission on behalf of Khushboo was that the comments were fair and reasonable and were protected by the fundamental right to speech and expression guaranteed under Article 19 (1) (a) of the Constitution of India. That even if the allegations in the various complaints were taken at face value and accepted in their entirety, the offences of obscenity, defamation and indecent representation were not made out.

The complainants argued that endorsement of pre-marital sex by a prominent person like Khushboo would have a morally corruptive influence on the minds of young people, leading to deviant behaviour that would affect public notions of morality. It was contended that freedom of speech and expression was subject to considerations of ‘public order’, ‘defamation’, ‘decency and morality’, and that Khushboo’s interview did not fall within the ambit of constitutional protection to free speech.

The Supreme Court threw out the cases under the Indecent Representation of People (Prohibition) Act, 1986, enacted to punish publishers and advertisers, as publication of her views in a newsmagazine did not make Khushboo an ‘advertiser’ or a ‘publisher’. Similarly, the cases of outraging modesty, defamation, and promotion of enmity between groups were thrown out on technicalities of the law, without much substantive discussion.

As regards the ‘obscenity’ allegation, the court noted that under Section 292 of the IPC a publication can be deemed ‘obscene’ if it is lascivious, appeals to the prurient interest, or depraves and corrupts persons likely to read the material. The judgment observed that Khushboo merely referred to the growing incidence of pre-marital sex and called for its societal acceptance. This could not be said to arouse sexual desire in the mind of a reasonable and prudent reader. The court observed that allegations that the remarks would misguide young people by encouraging them to indulge in pre-marital sex were a bit far-fetched. However, assuming the remarks did encourage some people to engage in pre-marital sex, the judgment held that no legal injury had been shown since pre-marital sex is not an illegal act or forbidden by law, and is not an offence. The court observed that it is not the job of criminal law to punish individuals merely for expressing unpopular views. It quashed all criminal proceedings pending against Khushboo in various courts.

The judgment, however, is unlikely to have a major impact on the institution or continuance of criminal cases with regard to the offence of obscenity. As cases under the offence of obscenity clearly demonstrate, a large part of the problem lies with the use of Victorian phrases like ‘lascivious’, ‘prurient’, ‘depraves and corrupts’ in the definition of ‘obscenity’, in the Indian Penal Code enacted in 1860. These phrases are inherently vague and prey on the subjective perceptions and opinions of the individual judge hearing the case. The need of the hour is to debate the merits of criminalising sexually explicit material as obscene, in sharp contrast to publications, films and material that promote sexism and violence. On this there appears to be little scope for review and debate among India’s lawmakers.